The Improbable Claim That EFCA Is Unconstitutional

Source: Michael H. Gottesman, American Constitution Society for Law and Policy, ACS Blog, February 4, 2009

The proposed Employee Free Choice Act (EFCA) authorizes National Labor Relations Board (NLRB) certification of unions when a majority of employees have signed cards designating a union to represent them, and mandatory arbitration of the terms of a first collective bargaining agreement if the employer and union are unable to reach agreement on their own. Richard Epstein, America’s most prominent libertarian legal scholar, authored a recent op-ed piece in the Wall Street Journal contending that EFCA, if enacted, would be unconstitutional. In his view, card check recognition abridges the employer’s right of free speech protected by the First Amendment; and mandatory arbitration, if it results in terms more expensive than the employer would have agreed to on its own, represents a “taking” violative of the Fifth Amendment.

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